Public officials could cover up criminal, improper or irresponsible activities by simply claiming communications to be ‘personal’

MIDLAND — A lower court's interpretation of what constitutes a
"public record" under Michigan's Freedom of Information Act would shield
criminal and other improper government activities from public scrutiny,
according to an amicus
brief jointly submitted to the Michigan Supreme Court today by the Mackinac
Center for Public Policy and the Michigan Press Association.

"The Freedom of Information Act provides Michigan
residents with an affordable and effective way to monitor the actions of public
officials," said Patrick J. Wright, director of the
Mackinac Center Legal Foundation. "When the Michigan Court of Appeals ruled that public employee communications, such as
e-mails on a government e-mail system, can be barred from public access simply
by declaring the communications 'personal,' FOIA was largely gutted. We've
joined with the MPA in asking the Michigan Supreme Court to re-establish the
intent and efficacy of this law."

"The outcome of this case is of vital
interest to every newspaper in the state of Michigan because it will impact
their ability to engage in reporting and inform citizens on the workings of
government, including misuse of taxpayer money," said Robin Luce Herrmann of
Butzel Long, General Counsel to the Michigan Press Association. "Efforts by
citizens to understand the workings of government and hold officials
accountable are likely to suffer immeasurably if this ruling is not reversed."

The joint brief was filed in the case of Zarko v. Howell Education Association, in
which political commentator Chetly Zarko filed a FOIA request for
e-mails sent on the district's e-mail system to and from three union officers
who taught in the Howell Public Schools and an HEA official. These officials
exchanged thousands of e-mails on school computers over a three-month span
during a period of collective bargaining negotiations. Zarko filed the FOIA
request to determine if tax-funded lobbying was occurring and if the school
e-mail system was truly being used for legitimate educational purposes.

"The Court of Appeals did not follow the
legislatively stated purpose of FOIA, which is to encourage disclosure, and the
court did significant damage to our ability to monitor our government," said
Wright. "Under the court's ruling, government supervisors and FOIA coordinators
who have incentives to hide government wrongdoing would have broad discretion
to thwart disclosure. Worse, the public and the press would never know whether
anything had been buried."